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12/29/94 BENJAMIN FRANK COX v. STATE

December 29, 1994

BENJAMIN FRANK COX
v.
STATE



Appeal from Mobile Circuit Court. (CC-87-2143.60). Michael Zoghby, TRIAL JUDGE.

Rule 39(k) Motion Denied, Rehearing Denied February 10, 1995. Certiorari Denied April 28, 1995. Released for Publication October 2, 1995.

Taylor, Judge. All The Judges Concur.

The opinion of the court was delivered by: Taylor

TAYLOR, JUDGE

The appellant, Benjamin Frank Cox, appeals from the denial of his petition for post-conviction relief under Rule 32, Ala.R.Crim.P. The appellant was convicted of murder, a violation of § 13A-6-2, Code of Alabama 1975. He was sentenced to 99 years in the penitentiary. We affirmed his conviction in Cox v. State, 585 So. 2d 182 (Ala. Cr. App. 1991), cert. denied, ___ U.S. ___, 112 S. Ct. 1676, 118 L. Ed. 2d 384 (1992). The current appeal is from the denial of his petition collaterally attacking his conviction and sentence.

He raises two issues on appeal.

I

The appellant first contends that his counsel's performance was ineffective at trial and on appeal. The right to counsel as guaranteed by the Sixth Amendment to the United States Constitution means the right to "effective assistance of counsel." Browning v. State, 607 So. 2d 339, 340 (Ala. Cr. App. 1992). Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S. Ct. 1708, 1716, 64 L. Ed. 2d 333 (1980).

To prevail on a claim of ineffective assistance of counsel, the appellant must show (1) that his counsel's performance was deficient and (2) that he was prejudiced as a result of the deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

The appellant first argues that his counsel's performance was ineffective in that he failed to make a Cage v. Louisiana, 498 U.S. 39, 111 S. Ct. 328, 112 L. Ed. 2d 339 (1990), objection to the trial court's instruction on reasonable doubt and failed to argue Cage on direct appeal. In Cage, the United States Supreme Court held that jury instructions that used the phrases "grave uncertainty," "actual substantial doubt," and "moral certainty" in defining reasonable doubt violated the due process clause of the Fourteenth Amendment.

However, in Victor v. Nebraska, ___ U.S. ___, 114 S. Ct. 1239, 127 L. Ed. 2d 583 (1994), the Court modified its holding in Cage. The Court in Victor held that, while it did not condone the use of the above words in a reasonable doubt instruction, the use of these words does not automatically render the instruction unconstitutional if "taken as a whole, the instructions correctly conveyed the concept of reasonable doubt to the jury." In Victor, the instructions also included the following: (1) " doubt that would cause a reasonable person to hesitate to act"; (2) "The jurors were told that they must be convinced of Victor's guilt 'after full, fair, and impartial consideration of all the evidence'"; and (3) "In determining any issues of fact presented in this case, you should be governed solely by the evidence introduced before you. You should not indulge in speculation, conjectures, or inferences not supported by the evidence." The Court held that all of these, taken as a whole, would not so define reasonable doubt "as to lead the jury to convict on a lesser showing than due process requires." ___ U.S. at ___, 114 S. Ct. at 1251, 127 L. Ed. 2d at 600.

The appellant was tried and convicted in 1989, over one year before Cage was released. We will not say that counsel's performance at trial was deficient for failing to forecast changes in the law. Hallford v. State, 629 So. 2d 6, 11 (Ala. Cr. App. 1992), cert. denied, ___ U.S. ___, 114 S. Ct. 1870, 128 L. Ed. 2d 491 (1994).

However, Cage was released while the appellant's case was pending on direct appeal. The appellant contends that his counsel should have filed a supplemental brief addressing Cage while his case was on direct appeal to this court.

While the trial court's instructions did contain the terms "moral certainty" and "actual and substantial doubt," those instructions taken as a whole thoroughly explained reasonable doubt and satisfied Victor and Cage. Therefore, the appellant has not shown that his ...


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